How the Patent Office Helped to End Slavery

Examiners at work in the U.S. Patent Office in 1869. Source: Library of Congress, Prints and Photographs Division

Feb. 8 (Bloomberg) -- It is easy to look to early America
as a moment of unshackled innovation. Yet in this respect the
pre-Civil War period was especially problematic.

Then, intellectual property and human property were dual
and dueling pillars of capitalist development, and for a vast
swath of the population, invention was stifled under the
crushing weight of slavery.

In the years before the outbreak of the Civil War -- the
historical record is not clear exactly when -- the future
president of the Confederacy, Jefferson Davis, filed a patent
claim on an improved riverboat propeller with the U.S. Patent
Office. The novel design promised both increased efficiency and
improved maneuverability compared with the paddlewheels then
favored by most river steamships. His claim, however, was
summarily denied.

Davis is remembered for many things, though not for being
an accomplished inventor, and for good reason: The improved
propeller wasn’t his to patent. Instead, it was the work of
Benjamin Montgomery, a slave on the plantation of Davis’s
brother Joseph.

Slave Owner

After the patent office turned down Jefferson Davis’s
claim, Joseph tried his luck, applying for a patent on the
propeller and making clear, as Jefferson had, that it was
Montgomery’s design. Since Montgomery was Joseph Davis’s human
property, Joseph had every reason to expect that the Patent
Office would accept his claim. Naturally, as one slave owner
phrased it, “no one could rationally doubt, that in legal
contemplation, the master has the same right to the fruits of
the labor of the intilect [sic] of his slave, that he has to
those of his hand.”

No one, that is, except U.S. Commissioner of Patents Joseph
Holt.

Unfortunately for the Davis brothers, Holt ruled in 1857
that slave inventions couldn’t be patented under existing law.
As a slave, Montgomery wasn’t a citizen and was therefore
“legally incompetent,” in Holt’s words, to file a claim on his
own. At the same time, because neither Jefferson nor Joseph
Davis was the “true and original inventor” of Montgomery’s
propeller, neither could file a claim on the slave’s behalf and
thus legally protect the invention.

In effect, slaves’ intellectual property simply didn’t
exist. This posed a significant problem, not only for the Davis
brothers, but for any slave owner who sought to protect and
profit from slaves’ inventions. On the eve of the Civil War,
several slaveholders met with similarly negative responses from
the Patent Office. For these Southerners, their prerogatives as
slave owners (-to maintain a legal system that inscribed the
inferiority of slaves),- and as capitalists (-to profit from the
judicious employment of their capital),- were thrown into
conflict by Holt’s patent ruling.

Still, the Davis brothers could have simply claimed
Montgomery’s inventions as their own. Evidence suggests that Eli
Whitney’s cotton gin and Cyrus McCormick’s reaper, both landmark
antebellum inventions, were at least partially the products of
slave intellectual labor. The Davis brothers took a different
approach, asserting the intellectual capabilities of slaves such
as Montgomery, while trying to claim the profits of that
ingenuity as their own.

Confederate Law

The creation of the Confederacy, though, offered
slaveholders a chance to square this circle. Through their new
government, Southerners sought to institute legal structures
that would allow them to deploy their human capital most
efficiently -- whether toward manual or intellectual labor --
securing for slave owners the profits from that work.

With Jefferson Davis at the helm, the Confederate States
enacted a patent law in 1861 that formalized slaveholders’
ownership of slave inventions.

If the “original inventor” was a slave, the act read, the
owner of the slave may “have all the rights to which a patentee
is entitled by law.”

Such legislative labors ultimately proved unnecessary. Of
274 patents issued by the Confederate Patent Office from August
1861 to March 1865 -- including improvements to rifle and cannon
technology, submarine and torpedo models, and a new type of
artificial leg -- none appears to have been the product of
slaves. Montgomery’s case proved to be a rare exception.

Still, even after the war, some Southerners continued to
promote and seek profit from the ideas of onetime slaves. One
Southerner marketed a novel agricultural implement using the
following testimonial: “I am glad to know this implement is the
invention of a negro slave -- thus giving the lie to the
abolition cry that slavery dwarfs the negro mind. When did a
free negro ever invent anything?”

The long history of African-American invention need not be
recounted here to demonstrate the falsehood of this statement.
Conversely and unsurprisingly, abolition greatly increased the
rate of black inventiveness, and led to what one scholar has
called “a burst of patents.” Clearly, the promise of owning
their own intellectual property prompted African-Americans to
pursue innovation in their own interests.

(Sean Vanatta is a graduate student at Princeton
University. The opinions expressed are his own.)